Why You Shouldn't Believe Marion Jones: Vol. 49

Story by Eric.

This is the 49th submission in a long series about Marion Jones, a former elite sprinter who won (stole) honour and earned (stole) endorsements, fame and fortune by method of fraud.

This story is being told in its entirety, because Marion Jones is unable to do it herself.

I left you yesterday with a fact regarding Marion Jones's previous coach, Steve Riddick's belief that the CAS, which has nearly 200 four-year term arbitrators from 87 countries who are chosen for their specialist knowledge of arbitration and sports law, was dragging out the arbitration proceedings against Tim Montgomery due to the organization having no foundational reason to ban Montgomery. It was Riddick’s position that Montgomery had never been caught for performance-enhancing drugs, had not done anything wrong, and had nothing to worry about - the same line Marion Jones stated during her run-ins with the law.

“When they do (make a ruling), I think they’ll just say, ‘Tim Montgomery. You can go run.’ They won’t make a big deal. If they were going to crucify you, they’d go ahead and make it news.” [1]

The Virginian-Pilot quoted Riddick as being more overtly confident.

He’ll win that hearing easily,” he said. “And everyone will have to write that he’s cleared.”[2]

The charges against Montgomery were as follows:

[A]t this time, and reserving all rights to amend the charge, USADA charges you with violations of the IAAF Anti-Doping Rules. (…) USADA charges that your participation in the Bay Area Laboratory Cooperative (“BALCO”) conspiracy, the purpose of which was to trade in doping substances and techniques that were either undetectable or difficult to detect in routine testing, involved your violations of the following IAAF Rules that strictly forbid doping.[3]

Montgomery notified USADA 2004-June-28 in response to that letter that, in conformity with paragraph 9 (b) (iv) of the USADA Protocol, he elected to “bypass the domestic hearing process” described in paragraph 9 (b) (ii) of the USADA Protocol and "proceed directly to a single final hearing before the Court of Arbitration for Sport." This step in his hearings process effectively eliminated any chance for him to appeal the CAS decision, as the CAS judgment – an appeals procedure which is not, as a rule, confidential (though parties may not disclose to any third party any information given to them during the mediation, unless required by law to do so) – is considered final and binding on all parties and is not to be subject to further review or appeal.

Montgomery, in a letter dated 2005-December-1, advised the CAS that his counsel throughout the arbitration, Howard Jacobs and Jill A. Benjamin representing the law firm Forgey & Hurell, LLP, and Cristina Arguedas and Julie Salomon representing the law firm Arguedas, Cassman & Headley, were being withdrawn as Montgomery’s counsel in these proceedings.

On 2004-September-20, the CAS Panel denied two USADA motions to both compel Montgomery to consent to USADA being able to access certain medical records, and to compel Montgomery to answer certain “requests for admissions”. USADA was also denied their requests for subpoenas to be issued to various reporters and to Montgomery, himself on 2004-October-7.

USADA’s chief executive Tygart, then legal counsel to the organisation, explained to Velonews 2007-May-3 the procedure involved in obtaining such records.

We are very limited in our authority to conduct investigations into alleged doping activity. We can collect samples, but unlike criminal investigators we have no power to compel witness interviews or to obtain medical/financial records unless the athlete consents to providing these documents or an arbitration panel orders their production. Also, we are unable to compel witnesses to provide information to us unless the arbitration panel subpoenas them to testify. So, the reality is that we are very limited in our ability to investigate facts outside of the results from drug tests.[4]

Thereafter, on 2005-April-28, USADA filed a motion to postpone the hearing which was scheduled on 2005-June-6. USADA had requested that the hearing be postponed until after the conclusion of the BALCO criminal trial so as to ensure, to the extent possible, that Victor Conte (who refused to testify in these proceedings prior to the completion of the BALCO trial) and IRS Agent Jeff Novitzky (whose testimony in these proceedings prior to the BALCO trial was said to be "uncertain") would be available to testify before the CAS Panel.

USADA’s motion was denied by CAS due to the possibility that Conte and Novitzky might not have been available to testify in the arbitration, and for the distinct unfairness this would have caused Montgomery insofar as it would have meant additional delay in the resolution of the charges brought against him.

The CAS Panel, having power in Lausanne, Switzerland to issue subpoenas enforceable by United States courts, issued subpoenas to five individuals, including White, compelling their attendance (and in certain cases requiring the production of specified documents by them) at the 2005-November-1 hearing. In Montgomery’s favour, they also issued subpoenas to several persons, compelling their attendance, and requiring they bring with them supporting documents to the hearing.

USADA, in their prosecution of Montgomery, called on the following witnesses:

  • Dr. Larry Bowers, the Senior Manager Director at USADA, who testified about the evidence discovered during the BALCO investigation, and also testified about Montgomery’s blood and urine testing;
  • IRS Agent Jeff Novitzky, who gave evidence regarding the BALCO investigation and of the nature of the documents discovered in the course of that investigation;
  • Kelli White, who had admitted to doping with the assistance of BALCO, who testified regarding an alleged admission made to her by Montgomery;
  • Dr. Hans Geyer, an expert who testified regarding Montgomery’s urine test results;
  • Dr. Richard Clark, an expert USADA called upon to analyse Montgomery’s urine test results submitted by USADA;
  • Dr. Michael Sawka, who is an expert whom USADA solicited to provide evidence regarding Mr. Montgomery's blood test results.
  • Dr. David Black, President and Laboratory Director of Aegis Sciences Corp.

Montgomery’s team called upon the following two – and only – witnesses to support Montgomery in this case:

  • Aegis Analytical Laboratories, a lab which provided expert evidence regarding the analytical laboratory data (blood and urine tests) produced by USADA; and
  • Dr. James Stray-Gundersen, an expert who testified regarding the blood testing results for Mr. Montgomery produced by USADA.

His counsel did challenge the evidences presented by USADA, listed below, and expanded thereafter:

  • The reliability and veracity of statements regarding Montgomery contained both in statements that may have been made by Victor Conte and in documents found in his files.
  • The propriety of the CAS Panel considering newspaper reports allegedly derived from secret Grand Jury testimony.
  • The credibility of Kelli White's testimony before the Panel in the arbitration.
  • The authenticity, reliability, interpretation and weight of test results conducted by non-IOCaccredited labs as well as the overall interpretation of the numerous blood and urine test results Montgomery.

The evidences provided by the USADA were as follows:

  1. Blood test results from a Mexican laboratory in February 2000 which allegedly show Mr. Montgomery's testosterone level doubling in the course of one day;
  2. Documents extracted from the seized BALCO files which, according to USADA, “individually or when linked together established Montgomery’s doping”;
  3. Evidence of the suppression and rebound of endogenous steroids in Montgomery’s urine, as shown in a table depicting test results reported by IOC-accredited and BALCO Laboratories on 56 occasions between March 1999 and September 2004;
  4. Alleged abnormal blood test results on 5 occasions between November 2000 and July 2001;
  5. Montgomery’s alleged admission to Kelli White that he had used a prohibited substance known colloquially as “the clear”;
  6. Apparent admissions against interest, which implicated Montgomery, made by the BALCO president Victor Conte, in interviews with investigative authorities as well as the media; and
  7. Reports in the San Francisco Chronicle which supposedly were based on secret grand jury testimony by Montgomery in which he admitted to using various prohibited substances. [5]

The CAS Panel apparently wrestled with the question whether, in the circumstances, it should have addressed each single element of USADA’s case against Montgomery as solitary evidences, including each of what USADA calls its “7 types of evidence” of doping by the Athlete.

Arguedas stated prior to the CAS Panel hearing – of which she was not a participant – that she had every intention of challenging the information which the USADA had called evidence. “I'm not going to call it evidence,” she said, and continued with the following announcement.

These facts remain true: There are no dirty tests. There is no authentication of any of the documents. They are internally inconsistent. On that basis, we are going to strongly challenge the implications they have drawn from these pieces of paper.[6]

Arguedas never made it to the CAS Panel hearing, as earlier referenced. Montgomery’s counsel never challenged the documents authentication, nor did they challenge the implications drawn by the CAS Panel from those documents.

Montgomery’s counsel, Howard Jacobs, was featured in USA Today, Tuesday, 2006-09-19. Jacobs, who was also the attorney hired by Marion Jones team to defend her against the “B”-sample, is known for his ability to finely dissect documents and evidences, and to dismantle opposing counsel arguments.

Nichols hired Jacobs immediately to defend her against the “B”-sample evidences and the initial “A”-sample readings.

His reason: Jacobs’s uncanny ability to comb through information and tear down arguments against his clients.

These type cases and this kind of litigation boils down to documents and experts. Howard is great at dissecting and dismantling documents, and he's great at dissecting and dismantling the other side's experts.[7]

The CAS Panel determined and chose not consider each of the “7 types of evidence” against Montgomery, because they believed it to be unnecessary. The CAS Panel was unanimously in favour – holding a single viewpoint and stance of solidarity – that Montgomery in fact admitted his use of prohibited substances to White on which basis alone the Panel could (and did) find Montgomery guilty of a doping offence.

Alas, a blinding spotlight flashed in front of Riddick, and the shadows behind which Montgomery was hiding were overtaken by the light.

The CAS, acting after an exhaustive process of determining the numerous substantial and legal issues which arose during the course of the proceedings – including briefings and hearings to identify and judge the evidence which it received (including testimony that White – a drug cheat reprimanded and banished for two years – stated Tim Montgomery and Chryste Gaines, another drug cheat, had stated to her they were using human growth hormones) expelled Tim Montgomery for two years in December, 2005, erased his world record, and merits in during the time – performances dating back to 2005-March-31 – of his drug cheating.

The CAS stated that “the straightforward application of legal principles to essentially undisputed facts leads to a clear resolution of this matter.[8]

CAS defended the USADA after a substantial number of correspondence, requests, objections, accusations and counter-accusations, motions and applications from both parties were heard and permitted.

Montgomery, having a right not to testify, chose to not appear on the stand – a decision which his attorneys had alerted both CAS and the prosecuting team of early in the proceedings. Montgomery’s lack of testimony, when weighed against the claims against him, provided the CAS ample opportunity to draw conclusions based on his lack of testament in the case. The CAS Panel informed Montgomery’s party that it was weighing whether or not it would draw any such inferences, and that would suspend deliberations to permit Montgomery a fair opportunity to reconsider his position on the matter of not testifying.

Despite that extra thinking time, Montgomery refused to take the stand. Why? To protect Marion Jones.

[1] The State.com, “Way off track”, 2005-11-13
[2] The Virginian-Pilot, “Some of the world’s best are getting their feet under them in Hampton”, 2005-05-25
[3] CAS 2004/O/645, 2005-12-13
[4] Velonews, “USADA’s lawyer: A conversation with Travis Tygart”, 2007-05-03
[5] CAS 2004/O/645, 2005-12-13
[6] The New York Times, “Drug Accusations Outlined Against 4 Elite Athletes”, 2004-06-09
[7] USA Today, ”Athletes accused of cheating find perfect advocate”, 2006-09-19
[8] CAS 2004/O/645, 2005-12-13

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